NY judge to hear arguments over disclosure of grand jury record in police chokehold death

FILE – In this Dec. 3, 2014, photo, security personnel stand outside Richmond County Supreme Court after a grand jury's decision not to indict a New York police officer involved in the police-chokehold death of Eric Garner, in the Staten Island borough of New York. The New York Civil Liberties Union and other petitioners have gone to court on Staten Island to demand that Judge William Garnett open the record in the Eric Garner case — a position opposed by Richmond Count District Attorney Daniel Donovan. Garnett is set to hear arguments at a hearing on Thursday morning Feb. 5, 2015. (AP Photo/John Minchillo, File)
(The Associated Press)

Gwen Carr, mother of Eric Garner, arrives for a court hearing in the Staten Island borough of New York, Thursday, Feb. 5, 2015. The New York Civil Liberties Union and other petitioners have gone to court on Staten Island to demand that Judge William Garnett open the record in the Eric Garner case, a position opposed by Richmond County District Attorney Daniel Donovan. (AP Photo/Richard Drew)
(The Associated Press)

Erica Garner, left, daughter of chokehold death victim Eric Garner, and his mother Gwen Carr, talk to the press after attending a court hearing, in the Staten Island borough of New York, Thursday, Feb. 5, 2015. Civil liberties lawyers urged a state judge on Thursday to reveal secret grand jury testimony concerning the police chokehold death of Eric Garner, an unarmed man, saying the public needs to reconcile a video of the arrest with the decision not to indict the officer involved. (AP Photo/Richard Drew)
(The Associated Press)

NEW YORK – Two months after a grand jury declined to press criminal charges in the police killing of an unarmed New York City man, a state judge must decide whether to disclose details of the secret proceedings.

The New York Civil Liberties Union and other petitioners have gone to court on Staten Island to demand that Judge William Garnett open the record in the Eric Garner case — a position opposed by Richmond Count District Attorney Daniel Donovan. Garnett is set to hear arguments at a hearing on Thursday morning.

In court papers, the NYCLU cited the outcry over the grand jury's decision not to indict Daniel Pantaleo — the white New York Police Department officer seen on a widely watched video putting the unarmed black man in what the medical examiner called a fatal chokehold — as a compelling reason to make an exception to the long-standing practice of keeping the process secret.

Disclosure is needed "to restore public confidence in our criminal justice system and . to inform the current debate that has begun regarding the role of the grand jury as an instrument of justice or injustice," NYCLU argues in the court papers.

In its reply, Donovan's office has argued that grand jury witnesses came forward and testified "with full assurances of secrecy." Making their testimony public, the papers argue, would bring an "inevitable result of harassment or retaliation."

Pantaleo and other officers stopped Garner on the street on July 17 on suspicion of selling loose, untaxed cigarettes. A video shot by an onlooker and widely watched on the Internet shows the 43-year-old Garner telling the officers to leave him alone and refusing to be handcuffed.

Pantaleo responded by wrapping his arm around Garner's neck — what he claimed was a sanctioned takedown move and not a banned chokehold. The heavyset Garner, who had asthma, is heard on the tape gasping, "I can't breathe." He later was pronounced dead at a hospital.

The NYCLU and others have asked the court to order Donovan to release of the grand jury transcript, including the testimony of Pantaleo and dozens of other witnesses, detailed descriptions of evidence and other documentation. A similar step was voluntarily taken by the prosecutor in Ferguson, Missouri, when a grand jury there refused to indict an officer in the fatal police shooting of Michael Brown.

The Staten Island prosecutor's papers question the decision in Missouri, arguing that even though the names of witnesses were blacked out, news outlets compromised their anonymity by seeking "to analyze the transcripts with an eye toward criticizing the witnesses in a manner that would be obvious to at least the witnesses themselves as well as those familiar with the involvement in the case."

Such disclosure would "almost certainly have a chilling effect on the very type of witness cooperation that is most desired and the most difficult to obtain," the papers add.

Aside from the NYCLU, the other petitioners are the Legal Aid Society, Public Advocate Letitia James, the New York Post, and local branches of the NAACP.